§ 3.23 p.m.
§ THE JOINT PARLIAMENTARY UNDER-SECRETARY OF STATE FOR SCOTLAND (LORD HUGHES)
My Lords, I beg to move that this Report be now received.
§ Moved, That the Report be now received.—(Lord Hughes.)
§ On Question, Motion agreed to.
§ Clause 1 [Succession in cases of illegitimacy]:
§ LORD DRUMALBYN
moved, in subsection (1) of the proposed new Section 4 of the Succession (Scotland) Act 1964, after the first "children", to insert:, whom that person has at any time during his life acknowledged as children of his,".
§ The noble Lord said: My Lords, it may be for the convenience of the House if I speak to the first two Amendments together, since they deal with opposite aspects of the same problem. These two Amendments relate to the new Section 4 (substituted by Clause 1 of this Bill) of the Succession (Scotland) Act 1964 which provides for succession in cases of illegitimacy. I think I should say that at present the law in Scotland is substantially the same as in England and Wales under the Legitimacy Act 1926. 198 If a woman dies intestate and is survived by no legitimate children, then any illegitimate children of hers surviving her share her estate; and if an illegitimate child is survived by his mother and has no legitimate children of his own or no spouse (or, in the case of a woman, if she has no legitimate children of her own), the mother succeeds to the illegitimate child's estate.
§ Under Clause 1 any illegitimate children are entitled to succeed equally with legitimate children to the estate of their father or mother. The parents both have the right to succeed to the estate of illegitimate children having no surviving children or no spouses The Amendments would limit the right of illegitimate children to succeed to the estate of a parent, or of a parent to succeed to the estate of a childless illegitimate child, to those cases where the parent has acknowledged the illegitimate child as a child of hers. This is the purpose of the Amendment. It is the acknowledgement of the illegitimate child as a child of the parent.
§ The Russell Committee on the Law of Succession in Relation to Illegitimate Persons considered whether there should be a distinction between the right to succeed a father and the right to succeed a mother, and whether some closer family relationship should he required for a father; but they gave their opinion, without giving any reasons, that the blood link should suffice in both cases. They recognised that it was more difficult to establish fatherhood than motherhood. They said that the facts dictate that. They also considered that affiliation orders cannot be regarded as sufficiently reliable to be taken as conclusive evidence of paternity. They then went on to consider whether any act of recognition should conclusively establish paternity for the purpose of succession; but they dismissed the idea of a formal declaration (having regard, they said, to the possibility of fraudulent declarations), and considered that it should be left to the courts to decide. In the last resort, of course, the courts will have to decide in any case. But I should have thought that one object should be to prevent many cases as possible from coming to the courts because of the distress that court action is likely to cause to the families of the deceased.199
§ So far as the right of parents to succeed is concerned, the question of distress is in the hands of the parents concerned. I should have thought it not unreasonable that, as the Amendment suggests, the right should be subject to the requirement that a parent has acknowledged the child and has contributed to his maintenance. A mother should have little difficulty in establishing this without a court action unless she has, as the Committee put it, "jettisoned" the child at birth, in which case she has no claim in justice or morality on the child's estate. On the other hand, it seems to me quite unreasonable that a mother who has brought up a child should have to share the estate with a father who has never acknowledged the child and has never supported it in any way.
When a father claims the estate of an illegitimate child it should be up to the father to prove in court that he has supported the child. The Society of Writers to the Signet, one of the four legal bodies in Scotland who were consulted, said this in their observations on the Committee Report:
Perhaps the most serious criticism which this Society would make on the recommendation of the Russell Committee is directed against the proposal that the father should have the same rights as the mother on the intestacy of the bastard. What is this, the Society must ask, if not a reward or a consolation prize for the not particularly commendable achievement of having sired a bastard? No justification for this recommendation is to be found in the Russell Report on the grounds of justice, morality or otherwise. It has all the appearance of an ill-considered and ill-advised attempt to simplify the rule of intestate succession by placing both persons in a similar position.
My Lords, that is fairly strong language, but in view of the fact that the Russell Committee did not themselves seek to justify their conclusions there, and they have not really been justified since, I hope that the noble Lord, in answering the second Amendment (unless he is prepared to accept the principle of it; I would not commit him to accepting the actual words) is able to tell us what is, in the view of the Government, the justification for this recommendation.
§ Turning to the right of an illegitimate child to succeed his mother, here again there seems no reason why he should succeed to the estate of a mother whom he has never known and to whom he 200 owes nothing except life itself. I recognise that this changes the existing law, but I think that most children who are jettisoned nowadays are adopted, so losing their rights to inherit from their natural parents while at the same time gaining the right to succeed to the estate of their adopted parents.
§ I come now to the question whether an illegitimate child should have the right to succeed to his father's estate and, if so, in what circumstances. The Russell Committee said, "Yes, in all circumstances," provided that the father can be found. If he cannot be found, he should be presumed to be dead. This recommendation is accepted in subsection (3) of the clause, but the Committee practically ignored the fact, which is revealed in the Appendix to their own Report, that in every single one of the countries quoted, except possibly Sweden, in which an illegitimate child has a right to succeed to his father's estate that right is conditional upon recognition by his father or else a formal declaration of paternity. Perhaps I might list the countries concerned: Australia, U.S.A., Belgium, Denmark, France. Italy, the Netherlands, Norway and Portugal. These are the countries that are given here.
§ The Committee do not appear to have inquired whether there were any grounds, in the experience of these countries, for the fears they expressed about fraudulent declaration. They give no reason at all for not coming into line with those countries. My first Amendment would make the right to succeed dependent upon acknowledgment by the parent during his lifetime. There seems to me no point in specifying what sort of acknowledgment. It could be by formal declaration; it could be through the father's signing the register at birth; it could be through less formal recognition—for example, by the child's living in the father's family. But in the absence of an acknowledgment of some sort the courts would have nothing but circumstantial evidence to go on; and plainly this has been firmly rejected by all the other countries quoted in the Appendix. So far, the Government have completely failed to justify their acceptance of this departure from experience.
§ My Lords, one of the members of the Committee, Sir Hugh Munro Lucas-Tooth, in his dissenting note, suggested 201 that one of the following tests should be applied. First, that the father signs the register of birth; second, that the father signs a document, possibly in some prescribed form, (recognising the bastard as his child; and, third, that the child lives for some period, however short, with the father as his acknowledged child. My Lords, it seems to me that in the broadest terms these Amendments give effect to the recommendation of Sir Hugh Munro Lucas-Tooth, and I commend this first Amendment to your Lordships. I beg to move.
Page 2, line 5, after first ("children") insert (", whom that person has at any time during his life acknowledged as children of his,")—(Lord Drumalbyn.)
§ 3.35 p.m.
§ LORD HUGHES
My Lords, I welcome the fact that these Amendments represent to some extent a broadening of the attitude of the noble Lord, Lord Drumalbyn, to illegitimate children. Having said that, however, I regret that I cannot recommend your Lordships to accept either the first or the second Amendment. My objections to the Amendments are quite simple. The Amendments are based on the view that the rights of illegitimate children to share in the estate of either parent could flow only from the acknowledgment of the child in some fashion or other. This was the view which, as the noble Lord, Lord Drumalbyn, has said, was considered by the Russell Committee, and considered very carefully. Indeed, it could be said to be the viewpoint expressed in the Note of Dissent, to which the noble Lord referred, by Sir Hugh Munro-Lucas-Tooth. The rest of the Committee who considered the matter in relation to a father's estate without exception came to the conclusion that it was wrong in principle that succession should be limited to cases where there had been voluntary recognition, whether formal or informal.
My Lords, this is the view which the Government completely accept. An illegitimate child whose father has chosen to acknowledge him during life would get the additional bonus of a right to succession, while the unrecognised child would, with the blessing of the law, continue to be ignored. This is a view which I find quite unacceptable. I appreciate that part of the noble Lord's anxiety 202 springs from the difficulty which he foresees of proving paternity for the purpose of succession under the Bill as al present drafted. We have acknowledged this, but I am not clear that with his formula it would necessarily be any easier to prove. The Amendment does not say what he intends by acknowledgment, and the noble Lord has made it quite clear that he wishes acknowledgment to be in almost any form: anything which could be described as acknowledgment would be acceptable to him.
In the second Amendment the noble Lord does not indicate how a contribution of maintenance to the support of an illegitimate child is to be proved in the many cases where such payment as there is is irregular and entirely formal, and in many cases quite unrecorded. The only equitable way in which to equate the rights of illegitimate children with those of legitimate children in relation to their parents' estate is, in the Government's view, to make the basis for these rights the same; namely, the simple test of paternity or maternity, as the case may be.
The question of maternity, as the noble Lord has said, is generally accepted not to present difficulties. The noble Lord's Amendment, by insisting that a mother must acknowledge her child, seems to raise an unnecessary complication and is the one point at which the noble Lord appears to be retracing a step which I thought he had taken at the last stage. There may be a great number of factors pointing towards or away from paternity, of which acknowledgement in any form is only one, although I readily concede that it is an important one. For example, a man, while never expressly acknowledging a child as his, may support or contribute to the support of the child either voluntarily or under a court order for affiliation and aliment.
In the light of these facts, the Russell Committee concluded that in cases of dispute the courts should be left to reach a decision on the basis of all the relevant information available to them. Thee courts are accustomed to dealing with claims against the estates of dead people, and no doubt they will establish appropriate practices for dealing with such cases. It may be that, without acknowledgement by his parents in his lifetime, or some firm evidence of a similar kind pointing 203 to paternity, the illegitimate person will have great difficulty in establishing a claim, particularly with the passage of time. Nevertheless, it seems to the Government that it would be totally wrong to refuse by Act of Parliament to recognise a child's moral claim simply because he will have difficulty in establishing it.
Coming to the second Amendment, if it is accepted that an illegitimate child should have equal rights with legitimate children in the estates of both parents on the basis of maternity or paternity, as the case may be, then I think the reciprocal right of the parents follows as a matter of equity. I know that one can argue that a father who has not contributed to his child's maintenance should not have a right to succeed the child, but this argument could apply also in the case of legitimate children. There are, as we all know, unfortunately a fairly large number of husbands who desert and fail to maintain their wives and legitimate children at present; but there is no suggestion that in these cases their succession rights should be curtailed. The reciprocal right of parents in their illegimate children's intestate estate on the simple basis of parenthood seems to me to follow as a natural corollary of an acceptance of the principle of equating the status of both types of children. We should bear in mind, too, that the right of a parent in any case is a conditional one. It operates on intestacy only where there are no children, legitimate or—under the new provision made by the Bill—illegitimate, and is of course subject to the prior and legal rights of a surving spouse.
I appreciate the care with which the noble Lord, Lord Drumalbyn, has gone into this matter and the clarity with which he has presented his views to your Lordships. However, we come back to the fact that there is a fundamental difference of opinion between the noble Lord and me on this matter. He does not accept the principle that we should remove entirely the distinction between legitimate and illegitimate children in this matter of succession, and that principle is one which I think must be accepted in its entirety.
§ LORD DRUMALBYN
My Lords, first of all, may I refer to the noble Lord's last remarks? He is talking about 204 removing entirely the distinction between legitimate and illegitimate children in succession. Of course, this Bill does not do that. It does it only in respect of succession to the parents' estate and reciprocally. If it were the case that this Bill put the illegitimate child exactly in the same position as the legitimate child everywhere, then it would be much more logical than it is at present, when it is restricted.
I would like to make clear that the real difference between the noble Lord and myself is about whether we are broadening or narrowing the position. I see this question of the illegitimate child as one to be settled within the whole context of society, in the broadest possible context, and not in the narrow, blinkered limits of what is in the interests of an illegitimate child. That is the main distinction between us. The noble Lord said that he wanted this matter settled on principle, but it seems to me that the defect in the Committee's Report is that it has not shown how these principles are going to work out in practice. Principles are all very fine, but I venture to criticise the Report in this respect. The Committee should have considered more carefully how this would work out. They had the opportunity to see how this Amendment was working out in practice in other countries, but they do not appear to have done so. That seems to me a very remarkable gap.
At the moment noble Lords may be saying to themselves that this refers only to Scotland, but the Russell Committee was made up of six English and Welsh members and five Scots, or something of that order. As the Government have accepted this principle for Scotland, the possibility is that they will introduce it for England as well; so I think it is a pod thing, in view of the much greater number of illegitimate children that are to be considered, that the Government should consider its full implications and consider in much more detail the experience on the Continent than appears to have been done. I say no more than "appears to have been done" because, if the Committee did consider it in detail, they did not put it into their Report.
I do not think I can say anything more on this point. I do not know whether 205 I have convinced noble Lords or not that I am right in this matter of principle. I do not say that the exact terms of my Amendment are right and, if they were to be redrafted, I should be glad if the Government were to keep the law as it is so far as succession to a mother's estate is concerned, and vice versa. With that exception, I would leave this with your Lordships. I would just add that this is the sort of thing that time and again has been the subject matter of Private Members' Bills and it ought to be left to individual members and not treated on a Party basis. That being so, I am content to leave this Amendment to the decision of the House.
§ On Question, Amendment negatived.
§ 3.48 p.m.
§ LORD DRUMALBYN
moved to leave out Clause 2. The noble Lord said: My Lords, I come to a different point. Clause 2, unlike the previous one, has no parallel in the law of England. I hope that that will not mean that all English Peers will depart from the Chamber, because I think that this is a matter of some interest to all noble Lords. Clause 2 deals with rights to legitim—that is, the right of the legitimate children of a marriage to share equally a fixed proportion of the net movable estate of a parent; half of the net estate of a parent who is not survived by the other parent or, if the spouse does survive, one-third of the net estate after satisfaction of the prior rights of the spouse. Apart from the satisfaction of the prior right of a spouse, this right exists, whether there is a will left or not. If there is, it overrides the express wishes of the testator.
May I be allowed to comment that this right is something of an anomaly, since the Succession (Scotland) Act 1964 abolished the distinction between heritable and movable property so far as succession is concerned, except in the case of legitim—that is not to say it is not a valuable protection, for example, for the sort of dependant who in England and Wales would be likely to obtain from the courts an award out of the estate under the Inheritance (Family Provision) Act 1938 where he, or more likely she, was left out of the will. The difference is that in Scotland it is a fixed right, whereas in England the court has discretionary power. In practice, a Scottish testator, 206 guided by his legal adviser, is careful to see that his wishes are framed in accordance with the requirements of legitim. In some cases this right may already have been satisfied by a gift inter vivos in exchange for which the child may have renounced his right to legitim.
But is the testator as likely to take into account illegitimate children who have not grown up in his family? Does this not mean that many more wills will he upset than are now? Does it nut also leave the way open to demands not only by illegitimate children but by persons fraudulently claiming to be illegitimate children of the testator? And will not the beneficiaries under a will normally be anxious to avoid a court case, and so perhaps concede claims which have no justification in fact. In practice, the right of legitim is often waived by some members of a family in favour of others, or another, or in favour of the other parent. Is it as likely that an illegitimate child would waive the right if it were given in this Bill? I venture to doubt it. And if the illegitimate child did not waive that right, human nature being what it is, the probability is that other children may not waive their rights either.
My Lords, what I find most repugnant about this proposal to give the illegitimate child a claim to legitim is that it is an invasion of a peculiarly family right by an outsider in most cases, in the sense of someone from outside the family, and in most cases by one who, admittedly by no fault of his own, has never been a member of the family and has never shared its ups and downs or common bonds of duty and affection. The illegitimate child, in the vast majority of cases, like everyone else outside the family, will never have earned his right to legitim. The right is not just by right of birth and blood, I submit, but by right of being the issue of a lawful marriage; by right of birth into a family, and a participation in that family. It is one thing to allow an illegitimate child a share with his half-brothers and half-sisters in the intestate estate of a parent; it is quite a different thing to allow him to override the last wishes of that parent, duly expressed in a will.
What is the argument by which the Russell Committee seek to justify this recommendation? They say it is not 207 enough that a Scottish bastard should be on an equal footing with an English bastard by sharing with legitimate children rights of succession on intestacy; he must, they say, so far as rights of succession in Scotland are concerned, be placed on an equality with a legitimate child in every respect and in particular by sharing rights of legitim. I have already made clear that he is not to be completely on a par with legitimate children, but so far as succession to the rights of the parent is concerned he will, according to the Bill, be placed on a par.
May I again quote from the observations of the Society of Writers to the Signet, who said:In the view of this Society, the Committee has underrated the practical results which the changes in law which it recommends would have upon the institution of marriage, briefly referred to in paragraph 21 of the Russell Report, and upon the happiness and security of legitimate families, and has ignored the embarrassment which would inevitably be caused to several equally innocent persons closely related to the deceased who might otherwise have remained in total ignorance of some incident which may have occurred in the distant past of the deceased's life. In the words of a leading member of the Law Reform Committee of the Bar Council in England, which we have been privileged to read, it might be hard on a wife bringing up the children of her marriage if her husband's children by one or more mistresses were on an equal footing with her own. Such a change in the law would be to introduce polygamy by a sidewind.This is the trouble about setting up a predominantly lay Committee to consider an isolated aspect of family law—and I say this knowing that the Committee was set up by the previous Government. If the Report truly reflects their considerations, the Committee have looked at their remit, in my view, from the point of view of the illegitimate child and his rights, to the almost total exclusion of the effect upon the community at large and the feelings and interests of others affected. The Committee, in my view, have taken the narrow view in this respect, and not I, as the noble Lord suggests. I am trying to look at it in the broadest context of the community and the nation.
Of course, where the illegitimate child is accepted into the family and brought up in the family, the child will in these days probably obtain rights through adoption. But if he does not, it is inconceivable to me that if the family is that 208 of his mother she will not make provision for him in her will, if she remembers to make a will; while if the family is that of his father, it is almost equally certain, I should have thought, if the child is brought up in the family, that the father will make provision in the will. In practice, therefore, illegitimate children who form part of the family are likely to share in the estate of the parent by whom they are brought up, without any need to perpetrate what is, in my view, the absurdity of giving illegitimate children the right to legitim without any form of adoption or even informal acknowledgment of the blood group. On the other hand, is it sensible or fair to give illegitimate children a right to share in the estate of a parent whom they may never have seen, for whom they have no feelings whatsoever, and with whom the parent/ child relationship has never existed except in pure procreation? Is that not bad social legislation? I beg to move.
Leave out Clause 2.—(Lord Drumalbyn.)
§ LORD HUGHES
My Lords, may I deal first with the reference the noble Lord, Lord Drumalbyn, made to the Succession (Scotland) Act 1964, when he suggested that this perhaps made legitim an anomaly. The 1964 Act did not alter the right to legitim. The assimilation of heritable succession to movable succession had no effect on the matter. Legitim is still paid only out of movable estate.
§ LORD HUGHES
I am sorry. I understood the noble Lord thought that the situation had changed and that legitim now applied over the whole Bill. In that case, we need not worry your Lordships about it at all.
§ LORD DRUMALBYN
Perhaps I should make the position clear. What I said was that an anomaly lay in the fact that the distinction between movable and heritable property, so far as succession is concerned, has been removed by the Succession (Scotland) Act 1964 except in regard to legitim, where it still relates to movable property only. It is only in regard to legitim that the distinction which has been abolished by the Succession Act remains.
§ LORD HUGHES
I think the exchanges make it clear that the noble Lord and I are of exactly: he same opinion as to where the law now stands. On the question of the Amendment that we are now discussing, we have covered fairly fully the same ground as was covered in Committee, and I do not wish to go over all that was then said. However, I should like to remind your Lordships that, following pressure in this House and elsewhere for action regarding the succession rights of illegitimate persons, and on the recommendation of the Russell Committee, the Government introduced this clause giving illegitimate persons the same right as legitimate persons to legitim from their parents' estate. It is this right which the noble Lord would remove from the clause. He would in fact take out the only indefeasible right that the Bill confers on illegitimate persons, the other main right, that on intestate succession, being one which can be removed by the making of a will. Thus I think I can safely say that the carrying of this Amendment would strike at the roots of the purpose of this Part of the Bill, which is to improve the succession position of illegitimate persons.
Looking again at our discussion at the Committee stage, I realise that there may have been a misunderstanding between the noble Lord and myself when I referred to the English Inheritance (Family Provision) Act 1938. I of course appreciate—indeed, at Committee stage I said so—that the provisions of this Act are dissimilar to the Scottish law of legitim. As the noble Lord, Lord Drumalbyn, has made perfectly clear, legitim is a right fixed by law to a share of an estate. The provision made under the 1938 Act is at the discretion of the court. But the point I was seeking to make at the last stage is that neither in English law nor in Scots law is it acceptable for a father to have the right to cut off a child without a penny. In both cases the children are given a claim against the estate of their parent which the parent cannot defeat by making a will. It is this right, different in nature in the two countries, which the Russell Committee recommended should he conferred on illegitimate as well as on legitimate persons.
If the noble Lord prefers the nature of the English right, rather than the long- 210 standing Scottish tradition, it is of course open for him to accept his own advice as to the way in which these matters ought to be followed by seeking to introduce a Bill to amend the Succession (Scotland) Act 1964 by substituting provisions on the English lines for the Scots law of legitim. But I should not wish to suggest that he would have much prospect of success if he were to venture into that field.
The noble Lord referred to the possibility, indeed the probability, of disturbance of the family at or after the time of the father's death if an unknown person comes forward claiming legitim. I must admit that this is not impossible. How can it possibly be said to be impossible? On the other hand, the chances of a person's establishing a claim without good evidence, such as past recognition, must be very slight. But what is the morality of this situation if from time to time it may occur? Of course it may be unpleasant for the family. But who carries the responsibility? Surely it cannot be a good reason for depriving an illegitimate child of its inheritance that its father has during his lifetime successfully concealed its existence from his family. This is a simple point. The Bill sets out to improve the illegitimate child's situation by improving its succession rights. It does this by equating its successive rights against its parents with those of a legitimate child. The noble Lord's Amendment would defeat both the purpose and the method of the Bill by removing the one indefeasible right that it provides. For that reason, I must advise your Lordships not to accept this Amendment.
In what the noble Lord said, although I am completely disagreeing with the principle which lies behind it, I must freely admit that he stated the case for it both with clarity and with fairness, except on one point. When he referred to the rights of legitim which a child had, he added the words, which so far as I can gather have no basis in law, "and of participation in that family". A legitimate child is not deprived of its share to legitim because it has not participated in that family. There can be circumstances where for one reason or another this does not arise. I know that when he put in these words the noble Lord was describing a situation which undoubtedly will exist 211 in the overwhelming mass of cases of ordinary family life consisting of parents and their legitimate children. But in fact when he added it to an expression of the law he appeared to be importing as law something which of course is not so, and using it as a justification for excluding in the case of the illegitimate child, because non-participation in the case of the illegitimate child may be as much the rule as participation is in the case of the legitimate child.
In conclusion, I would say this. The noble Lord, Lord Drumalbyn, made reference to the views of one of the Scottish legal societies. Your Lordships will recollect that at the Committee stage he asked about the consultations that had taken place, and I gave a list of a very large number of bodies, legal, religious, voluntary and so on, which had been consulted; and out of all that number the noble Lord has fallen back on one. On the question, which he also brought in, of the effect on marriage, I should like to say this. The evidence given by the Church of Scotland (Social Interests Sub-Committee of the Church and Nation Committee) was very brief. This was the view they expressed to the Russell Committee. The only expression of substance which I have been able to find is this sentence:It is the opinion of my Committee that the question of any possible weakening of the marriage bond should not be taken into consideration in any discussion of the legal status of the child born out of wedlock as there is no moral justification for penalising the child for the sins of the parents.The Sub-Committee put forward no proposals as to how the law should be amended. When the Church of Scotland was consulted by the Government about the Russell recommendations, after the Report had been issued, the views again expressed were very brief:… there are no more observations to be made".My Lords, the view expressed by the Sub-Committee is the view I have put forward time and time again in our discussions on this Bill. If anybody has done wrong in this matter it is not the illegitimate child, and the Government are seeking in this Bill to remove, in so far as it is appropriate to do so, the penalties which are being visited upon the illegitimate child. The noble Lord 212 referred to the fact that I had said we wanted this to be on the widest possible basis, and he said that we were not in fact doing so. But he will recollect that when there was a reference to applying it, say, to grandparents, I dealt with that point. The illegitimate child is not there as a result of any action taken by the grandparents, so therefore the interaction in relation to succession is between parents and children, between children and parents, and this is a perfectly logical justification for confining it in that way.
I appreciate very much how the noble Lord feels about this matter. I appreciate the attitude which he has in relation to the value, say, of adoption into another family, rather than hanging on or conferring the rights of a legitimate child on an illegitimate child. It may well be that with the passage of time, and the greater use of adoption measures, much of what we are doing in this Bill will not in fact arise. But this is a case where we cannot wait for perhaps many years to pass during which time some, perhaps many, illegitimate children will continue to suffer the disadvantages they have at the present time. As I have said, this is the one right conferred on the illegitimate child which no action of the parent can take away from him, and it would be wrong that we should accede to the deletion of this clause.
§ 4.9 p.m.
§ LORD DRUMALBYN
My Lords, I thank the noble Lord for his reply. I think he has replied to my arguments extremely fairly, although every now and again he has come along with an argument ad hominem, which in some cases I do not think was quite justified. For example, at no point (I think he rather pulled my leg about this) have I given advice that we in Scotland should substitute the provisions of the Inheritance Family Provision Act for the present law of Scotland, legitim and the rest. The noble Lord seemed to think that in the Committee stage I had rather suggested that we should get rid of legitim. I did not do so, and I did not do so this afternoon. I said that the position is somewhat anomalous in law, and that is so. But I made no suggestion whatsoever that we should get rid of legitim.
§ LORD HUGHES
My Lords, if the noble Lord will permit me to intervene, may I say that I am relieved to hear 213 him say that. But to a certain extent I was pulling his leg, because at one point he appeared to be inciting English Peers to rally to his support. I thought it might be worth while to point out that if he felt there were advantages in trying to adapt Scottish law to English law, there was a way in which this could be done.
§ LORD DRUMALBYN
That is perfectly clear, and I suppose in that case it would be possible to have exactly the same legislation for Scotland as for England. The Russell Committee did not think that it was within its terms of reference to recommend the answer, but since a United Kingdom Committee was set up the implication was that the intention of the Government then appointing it was that the laws on the succession of illegitimate children should be as nearly as possible assimilated. Does that, or does it not, mean that since there is no legitim in England it should be left out of account altogether? The noble Lord says that if we take this clause out we are removing the one indefeasible right that the Bill provides. By the same token, if legislation is introduced for England it will not be possible to introduce an indefeasible right at all because there is no legitim in England. Unless legitim were to be introduced specifically for the purpose of allowing illegitimate children to share in it there would be no point in the argument about similarity between England and Scotland. I should have thought it would have been sufficient to have brought the law of succession on intestacy into line without touching legitim at all.
I take the noble Lord's point that, when I brought together the facts of being born into a family and participation in that family, I was going beyond the law. I did not mean it as an expression merely of the law but as an expression of life as it really is—if you like to put it thus, a philosophical expression—and I would not accept his strictures that I was unfair in that regard. I was portraying exactly what the position really is legally and morally—or perhaps I should say legally and practically.
In spite of what the noble Lord has said about the support that the Government's proposal received from the Church and Nation Committee, I am bound to confess that that is information which I failed to elicit, although I tried to get it. 214 I think one has to bear in mind the fact that on balance we have had advice from the legal bodies against the Government's proposal. I have before me what the noble Lord said. I did not obtain the views of the Society of Solicitors in the Supreme Court; I did not obtain the views of the Scottish Law Agents and the Law Society of Scotland, to which the noble Lord did not refer. I am sorry, the noble Lord did refer to that Society. At any rate, up to the very last point when the Bill was sent along all three bodies were strongly against the views of the Government.
1 think possibly that once a lawyer sees a Bill in draft form he is apt to take a slightly different view and say: "Well, that is that; we had better accept it". But in the early stages the lawyers accepted that the S.S.C.s were, I think, stongly against the proposals of the Government. I know that at the last stage of the Bill the noble Lord said that it was by no means conclusive, but the reason why I referred to this point on the Committee stage was because, after all, these lawyers see more cases in the course of their experience than most other people. I say "most" and not "all" because, of course, there are the social workers as well; they are giving advice in these matters and weighing the pros and cons, and I should have thought their advice was well worth listening to. I am bound to say their first reactions were the best, as being the most natural reactions.
I agree that there is a difference in philosophy, but as I have indicated before I doubt the validity of the maxim from which this policy has been deduced. It is easy to talk about injustice being done; it is easy to say that the illegitimate child should not suffer for a wrong for which he is in no way responsible; but to deduce a whole series of law from that theoretical consideration, without considering its practical effects, seems to me to be a quite mistaken approach. And so far as legitim is concerned, I think this is the point where we have to consider whether the wishes of the testator ought to be overriden in this regard; whether a right to legitim should be given to all kinds of people, some of them perhaps well up in years, who have never had any expectation of such a right and who had never thought they had 215 such a right, because they were not identified with the family.
It seems to me that so far as legitim is concerned this is something which could well be left out of the Bill altogether. For my part, I am prepared to accept the right to succeed on intestacy. I am prepared to see, in that respect, the law of Scotland being assimilated with the law of England, but I do not see why, so far as legitim is concerned, there should be a right—what the noble Lord has described as "the one indefeasible right in the Bill". I do not see why that should be made available to an illegitimate child who, in the vast majority of cases, will have had nothing whatsoever to do with the parent, because certainly in recent years, and from now on, those children who are brought up in the families will normally
§ be adopted; and at any rate it seems to me almost certain that if they are brought up in the family they will be provided for in a will.
§ As for the rest, the noble Lord is quite right. I take the view that if the child cannot be brought up in the family of its natural parents the best thing for it is to be adopted and thereby to gain rights of succession to the adoptive parents. But as we have already dealt with the rights of succession for Scotland in this Session, this seems to me to be as far as we should go at the present time, and I hope noble Lords will support me in this Amendment.
§ 4.20 p.m.
§ On Question, Whether the said Amendment (No. 3) shall be agreed to?
§ Their Lordships divided: Contents, 73; Not-Contents, 56.217
|Aberdare, L.||Emmet of Amberley, Bs.||Mar, E.|
|Aberdeen and Temair, M.||Erroll of Hale, L.||Margadale, L.|
|Albermarle, E.||Essex, E.||Milverton, L.|
|Atholl, D.||Falkland, V.||Monckton of Brenchley, V.|
|Auckland, L.||Falmouth, V.||Mowbray and Stourton, L.|
|Audley, Bs.||Fortescue, E.||Moyne, L.|
|Baldwin of Bewdley, E.||Fraser of Lonsdale, L.||Oakshott, L.|
|Berkeley, Bs.||Glentanar, L.||Rankeillour, L.|
|Brooke of Cumnor, L.||Goschen, V. [Teller.]||Redesdale, L.|
|Brooke of Ystradfellte, Bs.||Greenway, L.||Rockley, L.|
|Carrington, L.||Grenfell, L.||Sackville, L.|
|Coleraine, L.||Gridley, L.||St. Aldwyn, E.|
|Colgrain, L.||Grimston of Westbury, L.||St. Helens, L.|
|Cork and Orrery, E.||Guest, L.||St. Just, L.|
|Craigavon, V.||Hawke, L.||St. Oswald, L.|
|Cromartie, E.||Horsbrugh, Bs.||Sandford, L.|
|Daventry, V.||Howard of Glossop, L.||Selkirk, E.|
|Denham, L. [Teller.]||Iddesleigh, E.||Sempill, Ly.|
|Dilhorne, V.||Ilford, L.||Somers, L.|
|Drumalbyn, L.||Inglewood, L.||Strange of Knokin, Bs.|
|Dudley, L.||Jellicoe, E.||Teviot, L.|
|Dunleath, L.||Kinnoull, E.||Thurlow, L.|
|Eccles, V.||Lambert, V.||Vivian, L.|
|Effingham, E.||Lothian, M.||Wakefield of Kendal, L.|
|Addison, V.||Crook, L.||McLeavy, L.|
|Airedale, L.||Donaldson of Kingsbridge, L.||Maelor, L.|
|Amulree, L.||Douglas of Barloch, L.||Meston, L.|
|Asquith of Yarnbury, Bs.||Gardiner, L. (L. Chancellor.)||Morrison, L.|
|Balogh, L.||Garnsworthy, L.||Moyle, L.|
|Bannerman of Kildonan, L.||Geddes of Epsom, L.||Ogmore, L.|
|Beaumont of Whitley, L.||Granville of Eye, L.||Phillips, Bs.|
|Beswick, L.||Hall, V.||Plummer, Bs.|
|Bowles, L. [Teller.]||Henderson, L.||Raglan, L.|
|Brockway, L.||Henley, L.||Rhodes, L.|
|Burden, L.||Hilton of Upton, L. [Teller.]||Ritchie-Calder, L.|
|Carron, L.||Hughes, L.||Rowley, L.|
|Champion, L.||Latham, L.||St. Davids, V.|
|Chorley, L.||Leatherland, L.||Samuel, V.|
|Citrine, L.||Lindgren, L.||Segal, L.|
|Collison, L.||Longford, E.||Shackleton, L.|
|Sorensen, L.||Swaythling, L.||Wells-Pestell, L.|
|Stocks, Bs.||Taylor of Mansfield, L.||Williamson, L.|
|Summerskill, Bs.||Wade, L.|
On Question, Motion agreed to.
§ Resolved in the affirmative, and Amendment agreed to accordingly.
§ 4.29 p.m.
§ "8.—(l) The principle of primogeniture and the existing rights in succession shall stand, subject to modification as follows—
- (i) the widow shall be first in line of succession,
- (ii) illegitimate children shall have equal claim with legitimate children in line of succession.
§ (2) In the event of a crofter dying intestate the Scottish Land Court shall have power to determine the succession to the croft and shall take into consideration the line of succession but shall have power to depart from the line of succession in order if their study of the human situation justifies the selection, as tenant of the croft of a person in line of succession other than the first."
§ The noble Lord said: My Lords, I want to thank the noble Lord, Lord Hughes, for the advice he gave me at the Committee stage of this Bill on June 13. He said, referring to myself, "He must work out his own salvation" (col. 264), and that I think was because I moved the deletion of Clause 8 but I did not substitute any other clause. I am glad to say to your Lordships that I have now found a "salvation" Amendment; to leave out Clause 8 and insert the new clause as printed. I hope that, as true Scots, the noble Lord, Lord Hughes and myself, it will not be a case of Greek meeting Greek. I do not think the noble Lord will quarrel with sub-paragraphs (i) and (ii) of subsection (1) of this new clause. There I think we are in some agreement. But subsection (2) is designed to restore to the Scottish Land Court power to deal with croft succession.
§ Until 1955 the Scottish Land Court was responsible for dealing with succession. It won universal respect and confidence among crofters, and as a court of law can safely be entrusted with the powers in the second part of my Amendment—powers that could not be vested in any other body. It must be remembered that the Scottish Land Court is not only a court of law, free from pressure of any kind and concerned only 218 with justice and fair dealing; but a body uniquely adapted to administer where it will—in a court house, a village hall, a schoolroom, or even in a croft kitchen. Indeed, I have known the Land Court meet in a bedroom. For the, time being that bedroom was the court, because someone who was bedridden there was connected with the case being heard. It has always had members who are, and were, Gaelic speaking, and who can establish a clear understanding of the minds and wishes of those who will be able to explain themselves clearly and without effort only in the Gaelic language. There are still many of these people left.
§ The crofter's economic situation, his geographical position, the fact that he does not own his croft—that so Jar as his croft is concerned he has rights but no property in it—all justify restoring to him the services in this matter of the Scottish Land Court, which was originally set up to assist him. By abolishing inequity, this action would secure flexibility in intestate succession, and also, by presenting crofters with familiar and comprehensible circumstances, serve to increase stability in crofting. That is a thing that we have to do, so far as the Highlands and Islands are concerned, to increase and develop the stability of indigenous working on the land, of the small man. This would accordingly help the Crofters Commission in their work, and also ether agencies charged with the development of crofting and the Highlands.
I should like to quote what the noble Lord, Lord Shawcross, said on July 4, in the debate on the Medicines Bill:
We who are lawyers, or concerned with the machinery of Government or with constitutional matters, have a growing anxiety about the way in which the rights of the citizen are increasingly interfered with otherwise than by judicial procedure."—[OFFICIAL REPORT, col. 527].
What a lawyer of the standing of the noble Lord, Lord Shawcross, says should receive considerable attention in your Lordships' House. On June 13, the noble Lord, Lord Hughes, said:
I am advised that in the large majority of cases the bulk of the crofter's estate consists of the croft, and the most important asset
there is the croft house."—[OFFICIAL REPORT, 13/6/68, col. 262.]
If there were no estate except the croft, each person who has a claim to a share in the estate would appear to be entitled to a share of the croft in some way in accordance with the terms of the 1964 Act.
§ If a man is awarded the croft, he will surely have to pay cash to the others to equalise the inheritance. If, for example, four persons had equal claims to share in the estate valued at £2,000, the person awarded the croft would presumably have to pay each of the others £500. Not many would do this. Where, for example, would the money come from? It would be a quite unrealistic removal of capital from the croft, from which in fact and in law the capital cannot be separated. The crofter does not own his croft or any of the improvements on it, including the house. They belong to the landlord, and when the landlord dies his property—which must appear on the inventory for confirmation—includes the crofts in his estate. The crofts cannot therefore appear on the crofter's inventory for confirmation as well as the landlord's.
§ What the crofter has are rights, and these can be valued by the Scottish Land Court; and they are valued by the Scottish Land Court only when the croft is given up by the crofter. One of the crofter's rights is to provide himself with a house on the croft, in which he can live while he exercises his other rights as a crofter. The house is legally an improvement, and as such is not the property of the crofter. For example, he cannot get a loan from a bank with the house as security as it is not his property; nor can the house be valued as part of his estate for confirmation, because the inventory can include only his property.
§ If a crofter is put out of his croft or surrenders it, then the Land Court will assess the value of the rights he is losing. These rights include a right to receive compensation for any improvements that he or his predecessors have made, including drains, fences, and the house he has the right to provide himself with for his use. Crofters are most disturbed at the power that might be vested in an executor or executors as envisaged in 220 the Government's Bill, and would much prefer to have restored to the Land Court the power it had originally. To submerge the crofter's succession law in the general law of Scotland is, in my opinion and that of many of the crofters themselves, to undermine the confidence of the crofter and take from him the certain knowledge that the croft can continue as such.
§ Through nearly 100 years crofting law has been built up to enable people to live on what, often enough, is the poorest land in the Highlands and in the most remote areas. These small men of agriculture will, I hope, be there in great numbers when the Highlands and Islands Development Board put into force the Bill sponsored by the noble Lord, Lord Mitchison, the other day, the Highlands and Islands Development Bill, giving the Highlands Board the authority to lake equity shares in businesses of small character right throughout the whole Highland area. That is what is required to restore the economic fabric of the whole of the Highlands which has been for so long patched. Conurbations of a seashore character will never succeed in solving the Highland problem. Conurbations will come of their own accord; profits will push them into the area. But what we really need is a rejuvenation of the whole fabric of crofting; and it can be rejuvenated, because these people are there, and have been there for a hundred years, provided they are allowed to have this security of tenure which has never been interfered with since the Napier Commission in the time of 1866. It cannot be right that the law of crofting should be altered merely to suit, say, departmental convenience or for other reasons of that character.
§ My Lords, I hope and I beg of the Government that they will do nothing to diminish the role of the small man in agriculture—and he is still legion throughout Scotland—and do nothing to interfere with the security which has been his up to date. I beg to move.
Leave out Clause 8, and insert the said new clause.—(Lord Bannerman of Kildonan.)
§ 4.42 p.m.
§ LORD HUGHES
With much that the noble Lord, Lord Bannerman of Kildonan, has said I do not disagree, and I 221 do not propose to comment upon it for the simple reason that so very little of what he said has any relevance at all to the Bill which we are discussing, or even to the Amendment which he himself is moving. I do not say this in any unkind way, because the noble Lord, because of his interest in these matters, has ventured into almost a dissertation of his philosophy on the way of life in the Highlands, particularly in relation to crofting. That could be quite appropriate in one of our ordinary Scottish debates, but in relation to this Amendment I suggest that it is a little away from the strictly relevant.
There is one matter I was a little alarmed about. The noble Lord started to quote from something which I said, I think, on June 13. He then went on to read other things which were quotations from somebody else, or he was reading a brief which somebody had given him—and I began to be alarmed at some of the things that I was purported to have said on June 13. Then I realised that the noble Lord had not indicated when he stopped quoting from me and started quoting from somebody else. I received an agitated note from the Box saying that these extracts attributed to me were not known. So I would be grateful if, when the noble Lord is consulting with Hansard, he would let them know when my quotation marks come in at the finish and when somebody else's start.
It is true that concern has been expressed throughout the passage of the Bill about the proposals for crofting tenure. Both here and in another place repeated efforts have been made by my colleagues and myself to explain the effect of these provisions and to answer a variety of criticisms about the framing of them. Despite this, some doubt would appear to remain in at least one quarter. It would be a great pity if your Lordships were left with the impression that this is other than an excellent measure and one widely welcomed in crofting circles. I should therefore like to deal, I should hope once and for all, with the various criticisms that have been made —and repeated—despite the fact that they have been answered again and again.
Your Lordships will appreciate that I am not dealing solely with what the noble 222 Lord, Lord Bannerman of Kildonan, has said in your Lordships' House, but with some of the things which are being said outside your Lordships' House, and particularly with reference to the debate here at the last stage and to my own remarks during that debate. One of the things which has been said was that preliminary consultation was inadequate. The short, and I should hope convincing, answer to that is that each body consulted in 1964 when crofters were excluded from the ordinary law of succession was again consulted on this occasion. This includes the question of reference to the Land Court which was not consulted either in 1964 or on this occasion.
Secondly, it has been said that there has not been adequate time for discussions during the passage of the Bill. It was said, in fact, that this was "rushed" legislation. The Bill was first introduced in another place on February 21 last, and a period of almost five months has passed during its passage through both Houses. It cannot be said, therefore, that there has not been adequate time for consultation and explanation of the crofting provisions of the Bill. There has been no after tilt to restrict discussion. My colleagues and I have dealt with questions and doubts that have been raised. There has been adequate opportunity for any broadly based concern or any justified criticism in to emerge. Neither has happened and it will simply not do to imply there is some objection which would have manifested itself in some other circumstances.
Thirdly, it has been suggested that the provisions are bad for crofting. My Lords, none of the criticisms made has proved to be of any substance. All that is left is that in some cases, not many, it may cost the beneficiary a little more to have the estate confirmed. Your Lordships must appreciate that in many cases there will be more in a crofter's estate than just the lease of the croft and the permanent improvements, and they are, as the noble Lord described them, croft house, byres, fences et cetera. For example, except in rare cases, there will always be some stock on the croft, furniture in the house and perhaps there may also be other movable estate such as, for instance, some money in the bank. Such items would at present be dealt with in accordance with the provisions of the 223 Succession (Scotland) Act 1964. Confirmation is therefore—at least in theory—necessary even at present for such items, and for this reason it is not considered that the present proposals, requiring the lease of the croft to be included in the confirmation, would add appreciably, if at all, to the cost. In this the crofter is in the same case as every other member of the community and enjoys the same reliefs and benefits as other small estates.
I wonder whether these few people who are objecting to these proposals really understand what the present law is and what the change will be. Do they understand that what is excluded from the succession law at the present time is merely the croft and its permanent improvements? Do they realise it does not cover the stock on the croft? Do they realise that the furniture in the house is not excluded at the present time? Do they realise that the money in the bank, any investments—that none of these is dealt with solely under crofting law, but that all of these items come under the ordinary succession law at the present time?
In so far as there may be any little extra cost in some cases on confirmation, this represents a price to be paid for the provision I have no doubt, but especially in view of the greater benefits it will confer on the women of the crofting community, it is a small price and one that no crofter will begrudge. Your Lordships know that through the generations it has all too often been the womenfolk who have held the crofts together when their menfolk have had to leave the township in search of work, in defence of their country, or for some other reason. What has tended to become obscured in all the exchange of discussion is that this is primarily a provision to protect the widow. I welcome the fact that the noble Lord has abandoned the previous attitude and now brings in, in another form, protection for the widow as being the first claim with which the Bill would deal.
To turn to the terms of the Amendment itself, although I must congratulate the noble Lord on accepting my advice to put down an Amendment of his own —and he quoted my words that he must seek his own salvation—I am afraid that I must disagree with him if he thinks that he has found any salvation. I must em- 224 phasise the fact that, so far as I am concerned, he has not managed to find a provision better than the present one. Clause 8 applies the provisions of the Succession (Scotland) Act 1964 to the tenancy of a croft. The main effect of the 1964 Act is that in the case of an intestate estate which is less than £2,500 (or where there is no issue £5,000) the widow will receive the whole estate including the tenancy of the croft. The proposal now made would mean that the widow would receive the whole of the intestate estate, even where it was much greater than £5,000.
The Succession (Scotland) Act went reasonably far to protect the rights of a widow, but to do what the noble Lord suggests, to provide that because it happens to be a crofting estate the widow should get the lot, no matter how much it shall be—and there are occasions when a crofting estate can be reasonably substantial—is just going too far. The Amendment starts off by stating that the principle of primogeniture should be perpetuated. This is what we are trying to get away from in the Bill. For example, if the principle of primogeniture were applied where there was no widow, the eldest son, whether he were legitimate or illegitimate, at home or an absentee, could claim the croft to the exclusion of another son or daughter who might have stayed at home and worked the croft during the later years of the father's life. The noble Lord, Lord Bannerman, then saw where sticking to the principle of primogeniture would lead him, because he then went on in the second part of the Amendment to depart from primogeniture.
Going behind the Amendment itself to what I think may be the purpose rather than the effect of the Amendment, I should think that the aim of the Amendment is to accept all that the Bill proposes, with the single exception that it would substitute the Land Court for the executor as the body empowered to make the selection of the successor to the croft tenancy. I think that this is what lies behind it. Unfortunately, that is not what the Amendment does. I have suggested on previous occasions that when we consider Amendments we must consider what the Amendment does; we must leave aside for purposes of our decision what the mover of the Amendment 225 thought his Amendment was going to do. I am afraid I cannot see why the noble Lord should consider that crofters are less able to manage their affairs than all other classes of the community are. Therefore, I cannot follow him in the suggestion that the Land Court in these estates is to be preferred to an executor.
Three things that I said in this House were sought to be criticised. First of all, I was accusx1 of saying that consulting the Crofters Commission is the next best thing to consulting individually with every crofter in the Highlands. That statement was characterised as non-sense. It would have been if I said it, but I did not. What I said was "Consulting the Crofters Commission as I have suggested …". The words "as I have suggested" were very carefully excluded from the reference which appears in the Scotsman and the Glasgow Herald. "As I have suggested" refers hack to the earlier part of the paragraph, where I saidThe obvious body to consult is the body which looks after the interests of crofters; that is the Crofters Commission, and through them the direct representation of the crofters." —[OFFICIAL REPORT 13/6/68; cols. 264–5.]One can make something look very foolish if one quotes it out of context, or leaves out anything which is inconvenient to the argument.
Could I give some indication of who were the people consulted? Following a revision of the procedure for appointing panels of Commission assessors, these undoubtedly now provide the most democratic method of sounding crofter opinion which has ever existed in the crofting areas. Nominations were asked for from more than 700 grazings committees which are themselves elected direct by the crofters in the townships. Where more than one name was suggested by the grazings committee in an area the committee were asked to put the nominees into an order of priority. The only difficulty arose in areas where there are no grazings committees, and in these cases crofters were invited through the Press to submit nominations direct. In every instance the Commission appointed as the Assessor the person preferred by the majority of the grazings committees who replied to their inquiry.
In addition to all this, the Commission have appointed to the panel a nominee of 226 each of the crofters' unions which may wish to be represented, and it must be borne in mind that many of the nominees of the grazings committees are also members of the unions. I know of no body which has gone to such lengths, in the Highlands and Islands or elsewhere, to establish such good lines of democratic communication. Furthermore, the Bill is not law until it has passed through all its stages, and the main part of the democratic process lies in the discussions and dialogue taking place during that time. It would be wrong to allow emphasis to settle the other way—that is, on pre-consultation, especially when, as has been pointed out repeatedly, the same procedure has been followed this time as last.
Moreover, immediately the Bill was published the significance of its provisions were given much wider publicity than the 1964 provisions. They were explained to Conferences of Assessors in Stornoway, Lochboisdale, Lerwick, Dingwall, Oban, Ullapool and Thurso, to the Lochaber Crofters' Union, to the Shetland Crofters' Union and representatives of the Council of Social Service in Shetland, to representatives of the N.F.U. at a meeting in Sutherland. Representatives of the N.F.U. were also present at the area conference in Thurso. The Commission even arranged for an explanation of the proposed change to appear in the Shetland Times, the Stornoway Gazette and the Oban Times. Yet we are accused of not having consulted the views of the crofters!
Out of all this has emerged the opposition to this particular aspect if at it will break up crofting in the Highlands if the lease of the croft is subject, to the same provisions of the law as c very-thing else which the crofter may own. In some cases, as I said in Committee, it may be that the lease of the croft is the biggest single asset the crofter has. It may in some cases be the bulk of his estate, but there will be other cases where it will be only part of his estate. We know the extent to which crofters have branched out into other lines to make crofting a way of life which they can continue by supplementing it by the creation or other assets. All this is to be regarded as of no importance.
The last thing I ever expected to hear from the noble Lord, Lord Bannerman 227 of Kildonan, was that salvation in the Highlands rested on going back to something which existed before 1955. Yet that is what he said. He said that a change was made in 1955, and that we ought to get back to the position which existed before then. The small opposition, from a very small part of the crofting community, which has been made to this proposal arises from what I believe is a genuine misunderstanding of the provisions of the Bill, a misunderstanding which persists despite all the efforts that have been made to get the position clear. I do not think that any Government, or any body such as the Crofters Commission, could possibly have done more to make the matter clearer. I am quite certain that where they may have failed with a few individuals—and I repeat, it is only a few individuals—nothing that I could add in this debate in your Lordships' House will make any difference to these few individuals whatsoever. What I am quite certain about is that this is something which can be applied with equal justice in the crofting communities as elsewhere, and the crofting community has absolutely nothing to fear; rather it has much to welcome in this proposal. I therefore invite your Lordships not to agree with the noble Lord, Lord Bannerman of Kildonan.
§ 5.1 p.m.
§ LORD BANNERMAN OF KILDONAN
My Lords, I see that I have the sympathy of the House. I am surprised that the noble Lord, Lord Hughes, should take exception to anyone quoting from a brief.
§ LORD HUGHES
My Lords, I want to make it perfectly clear that I took no exception to the noble Lord quoting from a brief. I was taking exception to his not making it clear when the quotation from my remarks ended and the quotation from somebody else started. I do not mind having my own words fathered on to me, but I do not want anybody else's illegitimacies.
§ LORD BANNERMAN OF KILDONAN
My Lords, the whole point about it, if I may say so, is that I expressly quoted the words which he said to me—that I must work out my own salvation. I did not say, "finish quotes". I should have said that to make it quite clear to the 228 noble Lord that the rest of the quotation I was talking about was not in any portion his. "Here then", I said, "is the salvation Amendment." I have it written down here. Surely, that is quite a distinct break from the quotation which I made? Later on I certainly made a quotation concerning the court, and its effect—the Scottish Land Court particularly being left out of the judicial decision concerning succession. This is important. I quoted the noble Lord, Lord Shawcross, to the noble Lord. He took no account of Lord Shawcross's statement concerning interference with the individual in this country by other than a judicial body.
I am trying to see to it that the crofter receives some attention from the Scottish Land Court, which has been the instrument for a long time in decisions concerning the crofter's wellbeing, including succession. I would say that it is far more necessary for the crofters to have the Scottish Land Court operating than a body of a non-judicial character, an appointed body, a body which can be affected from the outside, and by influences from outside. I would far rather see a judicial body like the Land Court, which could not be influenced, deciding some of the interests of the crofters.
It is not going back in anything but time to 1955, and that was when the Scottish Land Court decided succession. Now we are making the situation of succession to the croft more complicated. But what the noble Lord has never referred to is the fact that this Bill suggests that the executor is to decide in the intestate crofter's case. Who are the executors? The executors are interested people in the crofter's croft and the succession to the croft. Surely, there is no parity, no equality, no justice in the fact you should employ a judge who is an interested person in the disposal of the crofter's estate? This the Bill provides for and asks for. We protest, and the crofters protest, that the executor whom you are proposing in many cases will be an interested person. Not only that, but the Bill allows not only one executor but one, two, three, four or perhaps five executors, all of whom would be concerned to fight it out concerning this little right of the crofter in his croft. That is how I interpret this Bill. He can suggest himself as an executor; he can put himself 229 forward as an executor when he may have an interest of some character. I want a disinterested person, a judicial party outside of the crofting interest entirely, to do something about the bequests of the croft. There may be five or six who are prepared to inherit interests in the croft.
The noble Lord mentioned the fact that there may be one or two cattle on the croft and some furniture in the bedrooms. As if that is going to affect the issue in any way to any great extent! If there are five people with an interest in the croft (this is the thing that we want to avoid in crofting) there may be a possibility in the end that the croft will be divided into four or five portions in order to satisfy the interests of the people who consider they have a share in the croft. What happens then? In the end the croft disappears. Unfortunately, the outlook to-day is an outlook which says that the small man in agriculture is a difficulty. The economic farmer does not like him. Big business, if applied to crofting, would not work. Business methods of a farming character might not work. What we feel is hopeful in the crofting future is that ancillary industries may be brought in (and we have been waiting for them long enough) so that the crofter may have an extra cash wage with which to carry on his living and stay in areas that are remote and not very kindly ones.
These are some of the things which perturb me, and perturb the crofter. I am not here merely to say something concerning a Bill that "shoves" crofting law into the middle of what is Scottish general law. Crofting law is of its own, building up, as it were, over a hundred years. It may be old, but it is valuable and good, and it has enabled thousands of people to stay on the land who might otherwise not have been able to do so. Now they are being, in a way, threatened in the security on the croft, and we do not wish any possibility of division in the croft to come to upset and reduce the number of crofters on the land, although that is what official opinion would like to see, crofters' assessors.
In preparation for this Amendment I consulted for my salvation the Crofters' Federation in the Highlands and Islands. The noble Lord, Lord Hughes, has not mentioned them at all. He has mentioned the Crofters Commission's 230 assessors. He has said that they are elected by townships of crofters in the various parts of the Highlands; b it that is not the fact, either. Often enough there is no election whatsoever, but the name of a nominee is sent in by the secretary. That happens quite frequently.
§ LORD HUGHES
My Lords, would the noble Lord give the origin of that statement? What authority does lie cite for making a statement of that kind?
§ LORD BANNERMAN OF KILDONAN
My Lords, I can refer the noble Lord again to the authority. I will give the noble Lord the specific authority, but the general authority for that statement is the Federation of Crofters Unions.
I would finally say this. One cannot dispose of an issue of this kind in a facetious manner. It is not at all a question of scoring debating points. This concerns the livelihood and the future security of a section of people whose living and being has had to be, in a way, protected because of the difficulties of their whole situation. We do not wish that the law applying to these crofters and to their succession should be taken and put into the general law. Take 1964, for example. It was excluded then. The noble Lord, Lord Hughes, does not tell the House why it is not excluded now. It was good then. Why is it not good now? All these matters are matters, of serious moment. I would say this to the noble Lord, Lord Hughes. So far as I am concerned, as a debater it your Lordships' House I still have a long way to go, but when I say something concerning the people of the Highlands and the knowledge I have of their living, I say it not lightly but seriously.
§ On Question, Amendment negatived.
§ Clause 15 [Procedure]:
§ 5.13 p.m.
§ LORD HUGHES
My Lords, with permission I would speak to Amend vents Nos. 5, 6 and 7, which are related. The first two, while primarily of a drifting 231 nature, remove some inflexibility from Clause 15 so as to give a wider power to the Court of Session to prescribe by Rules of Court times within which a notice under subsection (2) is to be given and a requirement under subsection (4) is to be intimated. The third Amendment is purely drafting. It removes a possible ambiguity from the word "prescribed" in paragraph (6)(c) of Clause 15. The word "prescribed" is used throughout Clause 15 to mean prescribed by Rules of Court made by the Court of Session, but in paragraph (6)(c) what the court is given power to do is to prescribe exceptions to requirements "laid down" in Clause 15, and not exceptions to requirements prescribed by the court itself. My Lords, I beg to move Amendment No. 5.
Page 13, line 2, leave out ("at") and insert ("within").—(Lord Hughes.)
Page 13, line 29, leave out from beginning to ("require") in line 31 and insert—
("(4) Any party to whom information is furnished under subsection (3) of this section may, within such time as may be prescribed,").—(Lord Hughes.)
Page 14, line 14, leave out ("prescribed") and insert ("laid down").—(Lord Hughes.)
§ Clause 17 [Interpretation of Part III, and savings]:
§ LORD HUGHES
moved, after subsection (4), to insert:(5) The Clerk of any court having custody of any document shall, on the application of any person who wishes to rely, by virtue of section 10(2), section 11(2) or section 12(2) of this Act or any corresponding provision for the time being in force in any part of the United Kingdom outside Scotland, on the contents of that document in proceedings which he proposes to raise, or which are pending, in any court in the United Kingdom, and on payment by that person of such fee as may be prescribed by act of adjournal 232 or act of sederunt, as the case may be, made with the approval of the Treasury, issue to that person a copy of that document, or of the material part thereof, certified or otherwise authenticated by or on behalf of the court.
§ The noble Lord said: My Lords, the subsection which this Amendment proposes to introduce into Clause 17 is necessary to ensure that Clauses 10 to 12 work smoothly. It will be recalled that those clauses deal with the admissibility in subsequent civil proceedings of the findings of courts in earlier criminal and certain types of civil cases. The purpose of the new subsection to enable litigants or prospective litigants to obtain copies of the relevant documents relating to an earlier case from the clerks of court who have custody of them. The Lord President of the Court of Session has been consulted and is satisfied with the proposed new provision. My Lords, I beg to move.
Page 16, line 22, at end insert the said new subsection.—(Lord Hughes.)
§ Schedule 1 [Modification of Succession (Scotland) Act, 1964 Consequential on Sections 1 and 2 of this Act]:
Page 20, line 17, leave out paragraphs 3 to 7.—(Lord Drumalbyn.)
§ LORD HUGHES
My Lords, I do not agree with this Amendment hut, as the noble Lord has said, it is consequential on Amendment No. 3.